From “honoring and obeying” to taking out the trash, the duties that first come to mind when thinking about marriage are usually not fiduciary ones. Nevertheless, failure to fulfill these obligations of good faith and fair dealing can have serious financial consequences for couples before, during, and after divorce. While fiduciary duties arise in a wide variety of contexts (including between doctors and their patients, lawyers and their clients, and priests and their parishioners), they take on a particular meaning with married couples. Simply put, they compel spouses to deal fairly, responsibility, and transparently with one another regarding the management of their community property. Community property consists of assets acquired between marriage and separation, and includes wages, real property, stocks, businesses, bonds, pension plans, and 401ks. Additionally, a couple can change the character of an asset and agree that assets that are “separate” under the law (like an inheritance received during the marriage and prior to separation, or an asset owned prior to date of marriage), be re-characterized from separate to community.
While California law appears to allow each spouse to manage community property however they want, fiduciary duties exist to check this apparent absolute power of disposition. Family Code §721 dictates that spouses have the same fiduciary relationship as non-married business partners, which, in the context of the marital relationship, means they must do things like share information about transactions affecting their community assets and debts. In California, fiduciary duties exist between spouses so long as their community property remains undivided. For example, a couple who is ordered by the court to sell their former family residence and divide the proceeds may finalize their divorce before the residence has sold, but will continue to have fiduciary duties towards one another vis a vis the house until it sells.
Here, we explore some of the more common scenarios and pitfalls couples experience when confronted with their roles as fiduciaries:
SCENARIO 1 – Providing Access to Records
In the recent case of In re Marriage of Kamgar, the California Court of Appeals addressed whether the undisclosed trading of community stock constitutes a breach of a spousal fiduciary duty. Fred and Moira, a well-to-do couple, decided that Fred – who had developed an interest in options trading – would liquidate $2.5 million worth of community property stock so that he could “try his hand at doing something he [found] interesting.” Unbeknownst to Moira however, Fred in addition to the agreed upon $2.6 million went on to liquidate and invest an additional $8.1 million of the couple’s community stock, ultimately losing all but $409,000 of their $10.6 million community funds. When Moira filed for divorce a year later, Fred argued that the Family Code authorized him to spend the couple’s resources as he would his own, and that requiring him to report to Moira on the minutiae of every investment was untenable given the fast-paced nature of the modern electronic marketplace and the number of financial decisions implicit in the marital relationship. In response, the court highlighted the duty of each spouse to always make available to the other, without asking, any and all information required for the exercise of their rights in the marriage. The court explained that, since each spouse has a right to manage the community property, the withholding of any information that would prevent them from said management is a violation of a spousal fiduciary duty. Ultimately, because each spouse in a marriage has an equal right to manage the community’s property, the court found that Fred’s failure to disclose his additional $8.1 million investment to Moira infringed upon her managerial right and was therefore a violation of his fiduciary duty.
Our firm recently handled a case in which the parties co-owned an international import/export business. After their separation and the husband’s assumption of control of the business, the wife withdrew a large amount of money from the business account. The husband responded to this withdrawal by immediately taking her name off all business accounts and cards and changing all the company’s passwords and login information. The court held both parties accountable for their respective fiduciary breaches: it found that the wife breached her duty by withdrawing such a large sum without the husband’s knowledge or consent, but also required the husband to provide her with monthly reporting of all the business’s financials, and to report any large or otherwise extraordinary transactions.
SCENARIO 2 – Providing Information Upon Request
During both marriage and dissolution, spouses have a duty to disclose to one another “upon request, true and full information of all things affecting any transaction that concerns the community property.” In fact, California even requires divorcing spouses to fully and accurately disclose all separate and community income and expenses at the very beginning of divorce proceedings. For instance, per Family Code § 2104, the spouse who commences the divorce action is required to serve his/her financial declarations (known as Preliminary Declarations of Disclosure) on the opposing party within 60 days of serving the Petition for Dissolution and responding spouse is required to serve his/her Preliminary Declarations of Disclosure within 60 days of service of the Response.
Additionally, spouses have a duty to continually update this information while the proceedings are pending. The 2007 case of In re Marriage of Feldman dealt with a community estate worth in excess of $50 million. Aaron Feldman accumulated assets worth in excess of $50 million. During their divorce proceedings Mr. Feldman failed to disclose significant assets to his wife, including: a $1 million government bond and the loan taken out to purchase it, a multi-million-dollar residential property, a 401k, and the acquisition of several new companies. The court found that by failing to disclose these assets when Ms. Feldman specifically requested this information, Mr. Feldman violated his fiduciary duty to disclose upon request. The court also found that, because Mr. Feldman’s omission was intentional as opposed to inadvertent, his punishment must likewise be more severe.
What about the remedies and consequences available to the respective parties for these breaches? Because the discovery process is an essential tool in achieving equitable division of marital assets, courts deal very seriously with parties who intentionally fail to disclose assets or debts. Family Code § 271, 1101, and 2107 provide a range of remedies in the event one party’s nondisclosure “results in impairment to the claimant spouse’s present undivided one-half interest in the community estate.” These remedies include sanctions “in an amount sufficient to deter repetition of the conduct or comparable conduct”, payment of the opposing party’s attorney’s fees, and exclusion of evidence regarding the undisclosed item. Depending on the degree of deceit it observes in the nondisclosure, the court has the ability to order forfeiture of 50% to 100% of the value of the undisclosed property. Take, for example, a case handled by our firm, in which the husband failed to disclose multiple pieces of real estate. After the proceedings were over and a judgment of dissolution was entered wife discovered that several real properties existed and were purchased by husband with community funds. The husband failed to disclose the existence of these assets during the proceedings. While the parties ended up settling outside of court, the court had the discretion to grant wife 100% of the real estate purchased with community funds and intentionally omitted by husband.
The non-offending party has three years from the time they learned of the breach to seek one or more of these section 1101 remedies from a family law court. As set forth in Feldman, no harm need to result to the nonoffending spouse from the nondisclosure to receive sanctions and attorney’s fees. In the Feldman, Mr. Feldman was ordered to pay $250,000 in sanctions, and wife’s attorney’s fees of $140,000.
It is worth noting that, while these potentially severe penalties can be appropriate in instances where someone intentionally hides information, the courts and the law are aware that sometimes assets are not disclosed by mistake. For example, when parties have so many brokerage accounts between them that they mistakenly fail to address one in the judgment, and it remains undivided. In such a case the parties may go back and ask the court to divide these omitted assets.
Fiduciary duties can come into play at many junctures in marriage and divorce including the expenditure of community funds during marriage, and failing to disclose community assets during divorce. Because of the high stakes associated with spousal fiduciary duties, it is important to retain an attorney that understands them, and what they entail. Decisions made during the marriage and during divorce can have a huge impact on how the court divides assets so find an attorney who can both explain them to you and give you wise advice. If you are planning on or currently navigating a divorce, here at the Law Offices of Diana P. Zitser our team of attorneys and financial experts is here to help.
 Fam. Code §1100, subd. (a) [“[E]ither spouse has the management and control of the community personal property […] with like absolute power of disposition […] as the spouse has to the separate estate of the spouse”, italics added]; (In re Marriage of Kamgar (2017) 18 Cal.App.5th 136, 144 [“[E]ach spouse is mutually entrusted with full individual authority to manage and control community property, including disposing of or otherwise alienating it”, italics added].)
 Fam. Code § 1100, subd. (e) [“Each spouse shall act with respect to the other spouse in the management and control of the community assets and liabilities in accordance with the general rules governing fiduciary relationships […] until such time as the assets and liabilities have been divided by the parties or by a court.”]
 Fam. Code § 1100(e) [“This duty includes the obligation to make full disclosure to the other spouse of all material facts and information regarding the existence, characterization, and valuation of all assets in which the community has or may have an interest and debts for which the community is or may be liable.”]; Fam. Code §721 (b)(1) [“Providing each spouse access at all times to any books kept regarding a transaction for the purposes of inspection and copying.”]; Corp. Code § 16403(c)(1) [“Each partner […] shall furnish to a partner […] without demand, any information concerning the partnership’s business and affairs reasonably required for the proper exercise of the partner’s rights and duties under the partnership agreement[.]”]
 In re Marriage of Kamgar (2017) 18 Cal.App.5th 136, 146 [“Since each spouse has equal management and control rights, it appears they must provide the other ‘without demand, any information concerning the management and control of the community property. The failure to do so would be a breach of his or her fiduciary duty.’”].
 Fam. Code § 721, subd. (b)(2).
 Fam. Code § 2100.
 (Feldman, supra, 153 Cal.App.4th at page 36 [finding that none of the sections of the Family Code addressing remedies for fiduciary duty violation are aimed at redressing harm, but rather, at “reduc[ing] the adversarial nature of marital dissolution and the attendant costs by fostering full disclosure and cooperative discovery”].)
For couples going through divorces, the joy of the holidays and New Year often goes hand in hand with emotional, logistical, and financial challenges. Here are some of the end-of-the-year issues couples should consider when in the process of a divorce or in the midst of a separation:
Year-End Distributions. As anyone familiar with the Griswold family knows, the holiday season often coincides with receipt of annual bonuses, commissions, and other year-end distributuions, all of which can impact the amount of spousal and child support members of a divorcing couple owe one another. While California courts generally use the parties’ base incomes to calculate monthly support payments, they also apply so-called “escalation provisions” when either spouse earns income in addition to their base salaries – for example, from bonuses or commissions. Derived from a series of cases known as Smith-Ostler, these escalation provisions may increase or decrease the amount of child and spousal support owed depending on whether the payor or payee spouse (or both) earns income in addition to their base salary.
Consider the example of Spouse A and Spouse B, who share one minor child: Spouse A earns $475,000/year, and Spouse B earns $45,000/year. For purposes of this example, let’s assume the child resides with Spouse B approximately 75% of the time. After considering all the relevant deductions and credits, let’s say the court determines that Spouse A owes Spouse B $3,700/month in guideline child support and $9,700/month in spousal support for a total monthly support of $18,000. If at the end of the year Spouse A receives an annual Christmas bonus of $400,000, the court, after applying a multi-factor formula that takes both the parties’ base incomes into account, will make what is known as a Smith Ostler order, directing Spouse A to pay a percentage of the bonus to Spouse B as additional child and spousal support.
In the example above, Spouse A may be ordered to pay as much as 6% of $400,000 bonus as additional child spousal and 33% as additional spousal support for a total additional support amount of $156,000. On the other hand, if Spouse B also receives bonuses and/or commission on top of their $45,000 base salary, the amount they are awarded from Spouse A may be proportionately reduced.
If you are going through a divorce and either you or your spouse earn income above and in addition to your base salaries, it is important to consult with an attorney as to what each of your rights and responsibilities with regard to support payments may be.
Date of Separation. Establishing a date of separation is another critical element of any divorce proceeding in community property state like California, because it determines when property transitions from belonging to the community, to belonging to the individual parties. For example, if Spouse A and Spouse B are married in 2010, separate in 2015, and divorce in 2017, generally their wages for the five-year period prior to separation are considered community property. Disputes about separation dates can have a huge financial impact on the ultimate outcome of a divorce.
If there is a subjective disagreement between the parties as to the date of separation, the court will look at many objective factors including how the parties hold themselves out to the rest of society. This can present substantial difficulties for couples navigating a divorce while attempting to keep up appearances during the holidays at family gatherings, religious ceremonies, and holiday office parties.
Consider a case in which our firm represented a wife who decided to separate from her husband but agreed to wait to formally file for divorce and physically separate until their 12-year-old daughter left the family home for college. While they continued to hold themselves out to the rest of society as a married couple (attending family functions and school events together), there was a mutual understanding between themselves that their marriage was over. They slept in separate bedrooms and, other than appearances for the sake of their daughter and the business they ran together, led separate lives. Unfortunately, during this period, the husband also happened to rack up millions of dollars in gambling debt and investment losses. Six years later, when their daughter graduated from high school and left for college, the couple finally filed for divorce. During the proceedings, the husband alleged a date of separation being the date they filed for divorce instead of six years earlier in an attempt to claim the debts he incurred during the six-year period as a community loss not his personal loss. After reviewing the evidence presented at trial, the court found that the date of separation had occurred six years prior – even though the two participated in activities that made them appear like a married couple. It was their subjective understanding (as evidenced by the behavior between them), which proved to the court that they had in fact been separated for six years, and the husband’s debts were awarded to him as his separate liability.
Contrast this with the 1977 case of In re Marriage of Baragry: despite deciding to end their marriage, the husband continued to eat dinner at the family home, brought home laundry, went on vacations with his wife without their children, and sent her Christmas and Birthday cards including the words “I love you”. When the couple formally filed for divorce four years later, the court determined that the filing date was their date of separation because their previous behavior had not demonstrated an intent to permanently terminate the marital relationship.
If you are planning to divorce, wish to retain your current earnings as separate property, but need to attend family events, work functions, and other holiday gatherings with your soon-to-be ex, it is wise to establish a clear understanding between you, maybe even in a writing like an e-mail or text, that, the attendance does not symbolize a reconciliation. The same approach can be taken for gift-giving: establish in writing (for example, in texts, e-mails, or the card accompanying the gift), that the presents you may be exchanging are not an attempt to or indication of a desire to rekindle the marriage, but merely thoughtful gestures.
In re Marriage of Baragry (1977) 73 Cal.App.3d 444
In re Marriage of Manfer (2006) 144 Cal.App.4th 925
In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33
Cal. Fam. Code § 771(a)
The final months of 2017 saw Congress pass widely publicized legislation promising broad-based reform of the federal tax system. The final measure – which is due to be signed by the President prior to the upcoming holiday recess – reflects a consensus between sweeping changes proposed by the House and a more moderate counterproposal offered by the Senate. Provisions eliminating the taxation and tax-deductibility of alimony payments and lowering the mortgage interest deduction cap mean the substantial impact predicted for the public and private sectors is likely to also be felt by couples going through divorce. For those of you contemplating or currently pursuing a divorce, here are the two main ways the new legislation may affect you:
Alimony. Under the present system, alimony payments (referred to under California law as spousal support) are treated as taxable income for the recipient spouse, and tax-deductible income for the paying spouse. Take, for example, Spouse A (who earns $500,000 per year) and Spouse B (who earns $0). During their divorce proceedings, the court orders Spouse A to pay Spouse B $175,000 a year in alimony. Spouse A is currently allowed to deduct this $175,000 from their taxable income, while Spouse B has a baseline taxable income of $175,000. Under the new legislation, alimony is neither tax-deductible for the payor, nor taxable for the payee. Because their alimony payments are not considered taxable, Spouse B would receive $175,000 tax-free, while Spouse A would pay $175,000 from their post-tax income. The new legislation will not come into effect until January 1, 2019, so only couples who execute or modify their divorce decrees after December 31, 2018 will be impacted. While the law as currently applied arguably incentivizes an accelerated settlement process by providing a tax break to payors of spousal support, the new law risks creating a disincentive for individuals to settle to spousal support disputes. Since spousal support is a common point of negotiation between divorcing couples, increased contention on this point risks prolonging the settlement process, resulting in a higher emotional and financial costs for the couple, and a negative impact on judicial economy.
Mortgage Interest Deduction. Currently, the tax code allows homeowners to deduct interest on the first $1 million of a new mortgage. Congress has imposed a temporary lowering of this cap to $750,000 through the end of 2025. While this won’t affect divorcing couples who already have a mortgage (current mortgages are grandfathered in to the current $1 million cap), couples who obtain a mortgage after the passage of this new legislation and later decide to get divorced may be impacted. According to the California Family Code, the statewide uniform guide for determining child support takes into consideration the “state and federal income tax liability resulting from the parties’ taxable income […] after considering appropriate filing status, all available exclusions, deductions, and credits.” Spousal support is also a function of the net disposable income of both parties. Therefore, if the deduction cap is lowered, it may result in the payor being able to deduct less from their taxable income under the compromised plan, giving them less net disposable income, and reducing the amount of support received by the payee.
In light of the passage of this new legislation, it is critical to stay on top of the constantly changing legal landscape. Couples undergoing a divorce deserve a law firm with a team of experienced experts to explain how the changing tax code may impact the trajectory of their divorce. At the Law Offices of Diana P. Zitser, our network of brokers, appraisers, forensic accountants, and other tax professionals can provide this invaluable insight. For more information on how current legislative trends could affect your divorce proceeding, schedule a consult with our offices by visiting our website, or calling us at (818) 763-5274.
 Jeanne Sahadi, What’s in the GOP’s Final Tax Plan, CNN Money (Dec. 20, 2017, 8:21 AM), http://money.cnn.com/2017/12/15/news/economy/gop-tax-plan-details.
 Alexis Leondis, Why You Don’t Have to Rush to Get a Divorce Before 2018, Bloomberg Politics (Dec. 18, 2017, 7:37 AM), https://www.bloomberg.com/news/articles/2017-12-18.
 Mercado, supra note 3.
 Leondis, supra note 2.
 Mercado, supra note 3.
 Cal. Fam. Code, § 4055 et seq.